On March 23, Governor Gretchen Whitmer authorized Executive Order No. 2020-21, which temporarily requires individuals and businesses to suspend activities that are not “necessary to sustain or protect life.” The order went into effect at 12:01 a.m. on March 24 and will continue in effect until at least April 13, 2020.
The order specifically prohibits businesses from operating if such operation would require employees to leave their homes or places of residence. However, companies that operate essential businesses can require their critical infrastructure workers to leave their homes or places of residence to continue operations, subject to certain conditions. Critical infrastructure workers are those workers who perform services that are essential to continuing critical infrastructures in sectors such as health care and public health, law enforcement, public safety and first responders, food and agriculture, energy, wastewater, transportation and logistics, public works and many other sectors described in sections 8 and 9 of the order.
Additionally, workers who are necessary may leave their homes or places of residence to conduct minimum basic business operations. A company may have necessary workers even if the company itself is not a critical infrastructure industry. Necessary workers are workers whose onsite presence is “strictly necessary” to “…maintain the value of inventory and equipment, care for animals, ensure security, process transactions (including payroll and employee benefits), or facilitate the ability of other workers to work remotely.”
Employers must take the following steps in order comply with and ensure the health and safety of Michigan workers during the temporary Stay Home, Stay Safe order:
- Identify which workers are considered critical infrastructure workers pursuant to sections 8 and 9 of the order, and/or which workers are necessary to conduct minimum basic operations pursuant to section 4(b) of the order.
- Notify critical infrastructure workers and/or necessary workers of their designation in writing by April 1, 2020. The notice may be oral until March 31, 2020 at 11:59 p.m.
- Restrict in-person activities and the number of workers present to no more than is necessary to perform critical infrastructure functions or maintain minimum basic operations.
- Remote work to the fullest extent possible.
- Adopt social distancing practices and other mitigation measures to protect workers and patrons. These practices and measures include, but are not limited to, keeping workers and patrons who are on the premises at least six feet apart from one another, increasing standards of facility cleaning and disinfectant, and adopting policies to prevent workers from entering the premises if they display respiratory symptoms.
Employers also have the option of providing their employees with a safe passage letter as a best practice to ensure employees have proof of designation, should they ever need it. Finally, employers should be aware that any individual who willfully fails to comply with the requirements of this order may be subject to a misdemeanor pursuant to Michigan law.
Please contact any member of Varnum’s labor and employment team for assistance regarding the required notice, identifying critical infrastructure workers or any other questions related to the new order.